FAA Losing Drone Regulatory Battle So Far

The FAA has been able to keep pace with developments on the ground — or in the case of commercial drone operations — in the air.

— Dennis Schaal

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Thousands of commercial drone operators nationwide are cashing in on flying small, camera-equipped aircraft in defiance of the Federal Aviation Administration, which has barred such businesses from operating while it develops rules for the industry.

Horizon Aerial Media Services of Glen Park, New York, is a participant in the legal tug-of-war between commercial operators and the FAA. The business, launched in April by Jason R. and Amanda N. DesJardins, has used its drones to shoot video featuring virtual tours of homes for sale, weddings, a commercial for Davidson Automotive Group and the Jefferson County Fair, among other things.

So far the FAA has sporadically cracked down on the banned commercial use of drones, also called unmanned aerial systems. It has issued fines and cease-and-desist letters in some cases. But commercial operators contend the FAA has taken a contradictory stance by allowing hobbyists to use drones while barring commercial operations.

The FAA has permitted hobbyists to use drones as long as they keep them within sight of the remote-controlling operator at all times, fly them under 400 feet and keep them away from airports. The FAA, meanwhile, has been working on specific rules since 2009 to govern the commercial use of drones but hasn’t yet enacted anything — leaving the industry in limbo. It has barred those uses until new rules are in place.

The FAA has said it hopes to propose regulations later this year permitting the use of commercial drones that weigh 55 pounds or less. But industry experts say it’s unclear what those rules will entail and how they would be enforced. Congress, meanwhile, has ordered the FAA to develop a comprehensive plan to safely integrate drones by September 2015.

The DesJardins demonstrated their trade for the Times on Thursday as they shot a real estate video of a home for sale off County Route 193 in Theresa with one of their small drones with four rotors, a Phantom 2 Vision+ manufactured by DJI Innovations. The drone, which shoots high-definition video with 1080 megapixels, was bought online by Horizon for about $1,300.

On Thursday, Mrs. DesJardins operated the drone’s camera using her Samsung tablet, giving her husband directions while he navigated the 3-pound drone with a remote controller over the 25-acre property. The outdoor filming was done in about 10 minutes. While inside the house, the drone was carried by the couple from room to room to shoot the video.

The couple charges $150 to do real estate videos, which are made available for owners to post online, Mrs. DesJardins said. Outdoor weddings and other special events typically cost $300.

“Everyone thinks we’re getting rich, but we’re not,” she said. “These real estate videos are worth over two times what we’re charging, but our business plan this year is just to get people involved.”

Mrs. DesJardins argued the FAA, which sent a cease-and-desist letter to Horizon this summer, has a problem on its hands because it hasn’t developed rules to keep pace with the rising demand for drones to be used for commercial purposes.

“I think the barn door is open, and everyone is out there with them,” she said. “The FAA should have done this years ago, when it knew this was up-and-coming, instead of waiting until now.”

“We are in limbo, and we want to be a regulated community,” he said. “Safety is paramount, and we do not support the unsafe and reckless use for those that are attracted to flying UAS for commercial purposes. There are so many variables that a lot of these supposed commercial users aren’t aware of. What kind of standards they will need to follow remains to be seen, and we hope that training will be required.”

Mr. Mairena said the nonprofit global organization, which is devoted to advancing interests of the drone community, is opposed to businesses operating drones until rules are in place for a good reason. If a major accident were to occur while the FAA is developing rules, he said, it could set back the industry in a major way.

“Unfortunately, we can’t control the temperament of a lot of users that are choosing to break the law,” he said. “If there was an accident caused by a user who is recklessly using a UAS, it could set the industry back tremendously. It would trigger more of a reaction from the legislative body that could enforce greater restrictions.”

Patience will be required, however, among would-be commercial users who are awaiting the FAA’s green light.

Mr. Mairena said the FAA is expected to take a “piecemeal approach” for allowing commercial operations to use drones. In Washington, the FAA is now considering about 20 petitions for exemption from its ban on commercial drone-flying. Exceptions for pipeline and smokestack inspectors, movie-makers and agriculture uses are being considered. Amazon.com is seeking permission to test drones for its delivery service.

Earlier this month, the FAA announced Griffis airport in Rome as its fifth test site for small drones. The agency said researchers at the Oneida County airport will focus on testing the use of drones for agriculture applications.

“The safe integration of unmanned aircraft into the national airspace is our number one priority, but the agricultural research performed in Rome also may have far-reaching benefits to farmers in New York and across the nation,” Transportation Secretary Anthony Foxx said in a prepared statement.

FAA is authorizing six locations to test how small, low-flying drones can safely operate as it continues to develop comprehensive rules. Other sites announced so far are in Alaska, Nevada, North Dakota and Texas.

Future of Industry

The future economic impact of the commercial drone industry, meanwhile, will be held back until the FAA officially integrates rules, Mr. Mairena said. In March 2013, the AUVSI released an economic study that determined the industry has the potential to create 100,000 jobs and generate an $82 billion economic impact in the first decade after FAA rules are integrated.

The organization identified an array of commercial applications that would benefit, such as crop dusting, mining, port security and powerline surveying.

“And each day that the integration is delayed, that’s a $27 million loss in economic impact,” Mr. Mairena said.

The FAA’s multi-year process for implementing those regulations has had a direct impact on students at Embry-Riddle Aeronautical University in Daytona Beach, Fla. That’s because the FAA bars small drones from being used for educational purposes unless they are tethered to a stake in the ground, said Daniel Macchiarella, chairman and professor of the university’s Aeronautical Science Department.

Even so, FAA rules haven’t stopped students from enrolling in a science degree program for unmanned aircraft systems, Mr. Macchiarella said. The program had only 11 students when it was launched in 2011. Today, 220 students are enrolled in classes.

Professors across the country have complained about FAA restrictions, which hamper students from learning how to pilot the drones. When a drone is tethered to the ground with a cord, the FAA no longer defines it as an unmanned aircraft.

Students at Embry-Riddle are compelled to fly drones attached to 90-pound parachute cords that are several hundred feet long. That extra weight makes the drones challenging to fly, said Mr. Macchiarella, who hopes the FAA will soon announce rules for small drones this fall that will allow them to be used for educational purposes.

“It’s really a major limitation, he said. But this fall, “I think the FAA will set up some conditions for us to fly untethered.”

Those who graduate with degrees in UAS science usually start out making about $50,000 a year, he said. In the U.S., they are typically hired by governmental contractors and agencies that allow drones. But if they later advance to work for companies overseas, their salaries could be two to four times higher, he said.

Right now, drones are known for doing jobs that are “dull, dirty and dangerous,” such as powerline monitoring, sweeping over agriculture land and for law enforcement, Mr. Macchiarella said. But applications are expected to be greatly expanded in the private sector after the FAA integrates rules, he said.

“I think within 50 to 60 years, we’ll produce as many unmanned pilots as we do manned,” he said. “It’s going to be the future for aircraft systems, and now it will just depend on what happens with the regulatory environment.”

Legal Uncertainty

Model-aircraft hobbyists, commercial drone pilots and university researchers asked a federal court Aug. 22 to overturn an FAA rule that groups consider too restrictive. The controversial rule, which took effect June 23, defines in more detail who qualifies as a hobbyist and what precautions they need to take when flying drones.

The three lawsuits, which were filed in the U.S. Circuit Court of Appeals, contend restrictions in the new definition of hobbyists are arbitrary and an abuse of discretion, said attorney Peter Sachs, who launched an advocacy group called the Drone Pilots Association this summer.

The DPA joined three other groups to file one of the lawsuits. Other groups involved in the lawsuit include the UAS America Fund, SkyPan and FPV manuals. Mr. Sachs, a petitioner in the lawsuit, called the FAA’s passage of interpretive rules an attempt to “add teeth” to its ban on commercial operations.

In effect, “compensation of any kind for the use of drones is banned,” Mr. Sachs said. “That would include receiving money for a demo show at a model aircraft event, using a drone video for a news broadcast, using a photo taken with a drone in a real estate listing, or determining whether one’s crops need to be watered on a farm with a drone.”

Mr. Sachs said the DPA, which has about 1,500 members who use drones for commercial and non-hobby purposes, has argued in the lawsuit that the FAA’s new rule is a direct violation of what Congress forbade in 2012 when it approved the FAA Modernization and Reform Act. That legislation included a provision that stated the FAA is not allowed to create any new laws with respect to model aircraft not approved by Congress.

“They basically did what Congress specifically said they could not do,” Mr. Sachs said.

Mr. Sachs contended that meaningful legislation crafted by the FAA to regulate commercial drones isn’t likely to be approved for years.

“It’s highly unlikely that anything is going to happen for many, many years unless something changes legally,” he said. “They’re so far behind and are spending way too much time trying to enforce laws that don’t exist. Regulations that are safety oriented should be in place, but it could be 10 years before we see them.”

In the meantime, Rep. William L. Owens said he is concerned the unregulated use of commercial drones creates “chaos in the sky” with dangerous flight encounters.

“You have people getting into flight patterns,” said Mr. Owens, D-Plattsburgh. “We’ve got helicopters that are moving out of Fort Drum. Do you suddenly want a drone popping up that they can’t see and their radar doesn’t pick up? I don’t think that’s a place we want to be until we have a control system in place that allows that to happen safely.”

Video of a virtual real estate tour shot with a drone by Horizon can be viewed at http://wdt.me/drone-tour.

Photo Credit: The FAA issued new rules requiring operators of model aircraft and small drones to contact nearby airports if they are engaged in such activities within five miles of airports. Getty Images